Speaking at the Washington Examiner‘s Sea Island Summit on Friday, President Trump’s top private adviser on Supreme Court appointments suggested that the administrative or regulatory state will be “a very big issue” for the court in the coming years.
According to Leonard Leo, the critical question for the Supreme Court will be: “What kind of constraints do we want to place on regulators.” And Leo was clear that he believes Trump’s two confirmed justices, Neil Gorsuch and Brett Kavanaugh, will push back against government regulators who undertake an overly expansive view of delegated powers. To paraphrase Leo, just because regulators say the statue says X, doesn’t mean the court has to roll over and accept it.
Many conservatives will welcome Leo’s words here, and rightly so. After all, the usurpation of power by regulatory agencies has been a big problem over the past three decades. Claiming that narrowly defined statutes give them broad powers to order people around, and to do so in a manner that precludes the right of appeal or contest, regulators have been making it harder and more expensive to do business in America. What’s especially concerning about the expansive regulatory state is that it can crush smaller and midsized businesses, which is why the larger ones are often the first in favor of more regulation. Only the larger businesses have the resources to afford compliance costs that go with the regulatory state.
Yet there is new hope. If the Supreme Court starts restraining the power of government bureaucrats to act like Roman consuls, we’ll be in a much better place. This is a good example of why the Gorsuch and Kavanaugh confirmations are so important. And note a final point: Leo mentioned that he expects a “very aggressive” effort from Trump to see similar justices appointed in the future.
